SZRTE v Minister for Immigration

[2013] FCCA 537

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZRTE v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 537

Catchwords:
MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – visa – protection visa – refusal.

ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that the Tribunal made errors of fact and breached ss.424A and 425 of the Migration Act 1958.

Legislation:
Migration Act 1958, ss.36, 424A, 425, 474

Cases cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

Applicant: SZRTE

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1865 of 2012

Judgment of: Judge Cameron

Hearing date: 23 April 2013

Date of Last Submission: 23 April 2013

Delivered at: Sydney

Delivered on: 23 April 2013

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $6,471.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1865 of 2012

SZRTE

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant is a citizen of Bangladesh who arrived in Australia on 17 April 2011.  On 12 May 2011 he lodged an application for a protection visa with the Department of Immigration and Citizenship, alleging that he feared persecution in Bangladesh because of his political opinion.  On 22 November 2011 the applicant’s application was refused by a delegate of the first respondent (“Minister”).  The applicant then applied to the second respondent (“Tribunal”) for a review of that departmental decision.  He was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.

2. In these judicial review proceedings the Court cannot rehear the applicant’s application for a protection visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

3. For the reasons which follow, the application will be dismissed.

Background facts

1. The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4-14 of the Tribunal’s decision.  Relevant factual allegations are summarised below.

Protection visa application

1. The applicant made the following claims in his protection visa application:

   a)he was a leader of the Bangladesh Nationalist Party (“BNP”) youth wing, Jubodal;

   b)he left Bangladesh because he feared the Awami League and the government; and

   c)if he returned to Bangladesh he would be persecuted for his political opinions.  He might be beaten, arrested, detained and placed in a “crossfire” incident.  The authorities would not protect him because they supported the Awami League.

Department

1. At a departmental interview on 17 November 2011 the applicant provided a statement which he claimed he had given at the hospital where he was treated following an attack on him in January 2011.  In that statement he made the following claims:

   a)he was the assistant general secretary of the BNP youth wing in his home town until he came to Australia;

   b)he faced oppression and various obstacles in Bangladesh because of his political opinion.  This became intolerable after the Awami League gained power in 2008 and began torturing and oppressing BNP leaders and activists.  The Awami League harassed BNP leaders by using the police and the rapid action battalion;

   c)he owned a business in the local bazaar which was attacked by members of the Awami League on 15 November 2010.  They beat him and warned him against political involvement;

   d)on 21 January 2011 he was attacked when returning from a party meeting.  His assailants told him that they would teach him a lesson for ignoring their previous warnings and beat him unconscious.  He was saved by bystanders and was hospitalised for a week.  He tried to report the matter to the police but they refused to accept his complaint as it was directed towards Awami League leaders;

   e)at that time his sister in Australia was arranging a visa for their mother to travel to Australia.  He asked her to arrange a tourist visa for him too;

   f)before his visa application was made, there was a “scuffle” at the bazaar between the BNP and the Awami League. BNP leaders and activists were forced to leave their homes and businesses.  He hid for two months to escape torture from the Awami League and the police;

   g)at the end of April 2011 the Awami League filed a case against several BNP leaders and activists and the police began looking for him; and

   h)he remained in another town and then travelled to Australia with his mother.

2. The applicant also provided the following documents:

   a)a first information report filed on 8 April 2011 accusing a group of twelve people, including the applicant, of various offences including assault, demanding money and threats to kill in an incident which occurred on 4 April 2011;

   b)a letter from the president of the BNP youth in the applicant’s home town stating that the applicant had been the assistant secretary of his home town BNP youth committee and played a vital role in developing nationalist policies.  The letter stated that the applicant had been threatened with death by the local Awami League, physically attacked several times and had had false cases lodged against him;

   c)a letter from the president of the BNP youth in the applicant’s district stating that the applicant was the assistant general secretary of the BNP youth wing in his home town; and

   d)an injury certificate from a health centre stating that from 21 to 28 January 2011 the applicant had been treated at the centre for a dislocated left shoulder and a two inch scalp laceration resulting from an assault.

3. The applicant made the following additional claims at the interview:

   a)he joined the BNP in 2006.  He became the general secretary of the Jubodal in 2008 and in this role organised meetings and sent letters about the meetings to other party workers.  The position gave him a high profile;

   b)the statement he gave at the hospital was signed under a different name because the person who translated it into English had made a mistake.  He had not included in his application the claims made in the statement because he had not been aware of all the things in the application form and had thought he should provide details later;

   c)he was not questioned at the airport when he left Bangladesh because nobody was aware that he was travelling to Australia;

   d)he later found out that he had been charged over his involvement in party work and being involved in party rallies;

   e)if he returned to Bangladesh he would be involved with his business which would attract the attention of Awami League members.  They would inform the police and he would be tortured, have cases brought against him and could be killed in a “crossfire” incident;

   f)the Awami League was interested in him because when he used to attend [BNP] meetings everyone would see him; and

   g)his wife told him that there were cases against him and that he would be charged if he returned to Bangladesh.

Tribunal

1. The applicant made the following claims at a Tribunal hearing on 26 April 2012:

   a)he was a supporter of the BNP before he joined the Jubodal in late 2008 or early 2009.  When he joined he was asked to become the joint secretary of his home town branch.  The applicant then said he was actively involved in the party in 2006 and was given a position in 2008;

   b)as the joint secretary he helped the president and secretary to organise meetings and processions by telling people about those events.  He also convinced people to join the party and helped run the party.  He actively worked with the party during elections;

   c)he was attacked by members of the Awami League on 21 January 2011.  He knew them because they were from his area.  He had no visible injuries or cuts but had severe internal injuries and his shoulder, neck and whole body hurt.  He did not know why the medical certificate he provided stated that he had a laceration to his scalp because there had been no cut;

   d)after the Awami League came into power, it took time for it to organise itself and it slowly started targeting people.  It found out that he had gradually been more active with the BNP as time passed.  He was not immediately attacked after the elections because at the time he had been involved with his business and only later became more actively involved with the party;

   e)the Awami League and the BNP were involved in a fight for control of the town bazaar.  The Awami League then filed a case against a group of people, including him, for carrying illegal weapons.  At the time the fight happened he was not there and might have been in another town collecting his visa [for Australia];

   f)there was no arrest warrant issued against him before he left Bangladesh but one might be issued if he returned.  If he returned to Bangladesh the “opposition party” would tell the police;

   g)he came to Australia because he was attacked on two occasions and because of the incident in the bazaar which had led to a false case being filed against him;

   h)for the last two or three months before he travelled to Australia he lived with relatives and friends in another town, which was about forty-five kilometres from his home town, because he had been scared about the case against him and by the opposition party which had been attacking people;

   i)he had not sought to leave Bangladesh immediately after he was attacked because he had been waiting for his mother.  If she had not travelled to Australia he would have gone somewhere else.  He had waited two weeks after receiving his visa to leave because he had been finalising arrangements for his family and business, which he left to his brother; and

   j)he was not involved with the BNP in Australia because he did not know anyone who was involved with it in Australia, suffered from tension and did not have any close friends.  He intended to become involved.

The Tribunal’s decision and reasons

1. After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”) or s.36(2)(aa) of the Act. The Tribunal’s decision was based on the following findings and reasons:

   a)the Tribunal accepted that the applicant might have been a supporter of the BNP and Jubodal and that he might have joined the latter.  However, it was not satisfied that he had ever held a leadership position in the Jubodal or that he was a political activist.  The Tribunal was also not satisfied that the applicant had been known in his village or more widely in his district as a political activist or that he had distinguished himself in any way by his political opinion.  For the following reasons, the Tribunal doubted the applicant’s claims to have been an active member of the Jubodal in his village:

   i)there were inconsistencies in the evidence provided by the applicant about the actual title of his position in the executive board of the Jubodal: in his written statement he claimed that he was the assistant general secretary of his home town branch, at the Tribunal hearing he described himself as the joint secretary, the letter from the president of his home town branch described him as the assistant secretary and the president of his home district branch described him as the assistant general secretary;

   ii)despite his claims to have been a highly active and committed member of the Jubodal, and a member of its executive committee in his village, the applicant did not provide any information about his activities in his written statement. The Tribunal found that at its hearing he only provided a vague and sketchy outline of his duties which amounted to little more than that he had informed people of forthcoming meetings and processions.  Even making allowances for the fact that the applicant’s involvement with the Jubodal had only been for about two years, the Tribunal was not satisfied that the applicant’s responses gave any indication of the first-hand knowledge or experience that might reasonably have been expected of a prominent local leader of a wing of the BNP; and

   iii)the applicant had not had any involvement with the BNP since his arrival in Australia.  The Tribunal did not find the applicant’s explanations for this lack of involvement convincing and was not satisfied that they reflected a genuine effort to locate and associate with the party in Australia.  The Tribunal found that this also cast doubt on his assertion that he would involve himself with the party if he returned to Bangladesh;

   b)the Tribunal did not find the applicant’s claims to have been attacked twice by members of the Awami League to be credible.  It was not satisfied that the applicant had ever been attacked by members or supporters of the Awami League or that a false case had been brought against him.  In this connection the Tribunal noted that:

   i)the applicant’s evidence at its hearing, that during the second attack he had sustained internal injuries which were not visible, was inconsistent with the evidence in the medical certificate he had provided which stated that his injuries included a large laceration to his scalp.  The Tribunal noted that when this inconsistency was put to the applicant, his responses were notably evasive and unenlightening;

   ii)the applicant was not attacked by the Awami League for almost a year after it came into power.  The Tribunal was not convinced by the applicant’s explanation, that the Awami League had slowly targeted people, and found that his further explanation, that he was largely involved in his business interests before becoming active in the Jubodal, was a retreat from his earlier claims of activism;

   iii)the first information report submitted by the applicant had been filed on 8 April 2011, three days after his tourist visa to travel to Australia had been granted, and referred to the incident occurring on 4 April 2011, the day before his visa was issued and well after his visa application had been lodged.  The Tribunal thus found the applicant’s claim to have been so afraid of being arrested or killed by the police over his false charge that he decided to leave Bangladesh to have been untenable; and

   iv)the applicant remained in Bangladesh for a further two weeks after his tourist visa to travel to Australia had been granted.  The Tribunal was not satisfied that the applicant’s explanations for this delay accounted for his failure to take immediate steps to leave Bangladesh; and

   c)taking into account country information indicating that false and fraudulent documents were readily available in Bangladesh and were often used in support of protection claims, together with its concerns about the credibility of the applicant’s evidence, the Tribunal was not satisfied that any evidentiary weight could be placed on the documents the applicant had submitted in support of his claims.

2. In light of all its findings, the Tribunal was not satisfied that the applicant had ever been a political leader in Bangladesh, that he had any profile as an activist in support of the BNP or Jubodal or that he had ever suffered harm for that reason at the hands of the Awami League or anyone else in Bangladesh.  The Tribunal found that nothing had changed since the applicant left Bangladesh to suggest that there would be a real chance that he would suffer harm if he returned to his home and resumed his previous level of involvement with the Jubodal.

Proceedings in this Court

1. In the application commencing these proceedings the applicant alleged:

   1.The Tribunal made a jurisdictional error that the Tribunal rejected the applicant’s claim on the basis of the wrong findings that the applicant had not had any involvement with the party in Australia after being here for a year. The Migration Act 1958 (the Act) allows the minister to disregard any conduct engaged in by the applicant in Australia (paragraph 66 of the RRT decision).

   2.The Tribunal made a jurisdictional error that the applicant was not given enough opportunity to address the inconsistency in his response at the hearing according to the Act. He did not understand the consequences of the Tribunal’s asking about the inconsistency at the hearing and the applicant also did not know that he can seek additional time to reply Tribunal’s asking.

   3.The Tribunal asked many questions to the applicant at the hearing (paragraph 70, 71, 72 & 73) which the applicant did not understand and that’s why he was not able to answer them properly. The Tribunal also had difficulties to get the relevant answer at the hearing. The applicant did not know that he could have asked for additional time to answer the questions of the Tribunal. The Tribunal made a jurisdictional error in this regard.

   4.The Tribunal made a procedural mistake that the applicant did not get a fair hearing opportunity to put his case and prove his case before the Tribunal. The Tribunal has an obligation according to the Act that the applicant understands the reasons for decision and the decision was made according to the Act.

   5.The Tribunal made a jurisdictional error that the Tribunal rejected the applicant’s claim on the basis of wrong observations that the applicant’s involvement with the Jubodal have lasted no more than about two years. That he had not had any involvement with the party in Australia after being here for a year. That these are not marginal or insignificant aspects of the applicant’s account but instead lie at the heart of his claim to fear harm in Bangladesh. That the Tribunal has difficulties to understand some of his claim (paragraph 71 & 73). That the connection between FIR and date of occurrence and the date of Australian tourist visa issued on.

Ground 1

1. The first ground of the application alleged that the Tribunal made an incorrect finding of fact.  That the Tribunal might have reached an incorrect conclusion, or at least one which most other people would not have reached, does not amount to jurisdictional error.   It would be different if the finding was entirely unsupported by evidence, but that is neither the allegation nor the fact.  Indeed, the finding in question was one which reflected the applicant’s own evidence.

2. The allegation fails to identify any jurisdictional error on the part of the Tribunal, and thus does not disclose a basis on which the Tribunal’s decision should be set aside.

Ground 2

1. One implication of the second ground of the application was that the Tribunal failed to observe its obligations under s.424A of the Act by not putting to the applicant evidence which would be the reason or part of the reason for it possibly affirming the decision of the delegate. Section 424A relevantly provides:

   424A         Information and invitation given in writing by Tribunal

   (1)     Subject to subsections (2A) and (3), the Tribunal must:

   (a)give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

   (b)ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and

   (c) invite the applicant to comment on or respond to it.

   …

   (3)     This section does not apply to information:

   …

   (b)that the applicant gave for the purpose of the application for review; or

   (ba)that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; …

1. Information to which the applicant refers in his allegation in the second ground of his application is information which he either provided to the Tribunal or provided in a written form to the Minister’s department at some earlier point. That information falls within the s.424A(3) exception to the operation of s.424A(1) with the consequence that it did not have to be notified to him under that section.

2. The other possible implication of the second ground of the application is that the Tribunal failed to observe its obligations under s.425 of the Act, which relevantly provides:

   425   Tribunal must invite applicant to appear

   (1)The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. …

3. The Tribunal will have failed to provide the real and meaningful hearing implicitly promised by the invitation referred to in that sub-section of the Act if the applicant was denied the opportunity to give to the Tribunal the evidence and arguments he wished it to have. However, generalised allegations such as the one made in the second ground of the application provide no basis to conclude that this occurred in this case. No evidence was adduced to suggest that the applicant was prevented from saying what he wanted to say at the Tribunal’s hearing. For that reason, to the extent that the second ground of the application alleges a breach of s.425 of the Act, it is not made out.

Ground 3

1. The first element of the third ground of the application was an allegation that the applicant did not understand the Tribunal’s questions.  However, this allegation was not explained or clarified and the applicant did not identify why any lack of understanding on his part amounted to jurisdictional error on the Tribunal’s.

2. The second element of the third ground of the application appeared to be an allegation that the Tribunal failed to advise the applicant of a right to ask for additional time to respond to questions. However, the Act provides no general right of this sort. Consequently, any failure to give such advice does not amount to jurisdictional error.

Ground 4

1. The first element of the fourth ground of the application was that the applicant was not given a fair opportunity to put his case to the Tribunal.  No particulars of this allegation were provided and so it lacks meaningful substance.  Specifically, the applicant did not identify in which of many potential ways he claimed not to have been given a fair opportunity to put his case.  Absent information of that sort, this allegation does not demonstrate jurisdictional error on the Tribunal’s part.

2. The second element of the fourth ground of the application was an allegation that the Tribunal had an obligation, which it presumably breached, to ensure that the applicant understood its reasons for decision.  There was no such obligation.

3. For these reasons, the fourth ground of the application does not disclose jurisdictional error on the Tribunal’s part.

Ground 5

1. The fifth ground of the application raised a number of issues which are all questions of fact, not law.  The Court’s role in judicial review proceedings such as these is to determine whether the Tribunal properly applied the law in the conduct of its review and in the making of its decision.  Unless an error of this sort is demonstrated, the Court cannot set the Tribunal’s decision aside.  As the fifth ground of the application only raised disagreements with the Tribunal’s factual conclusions, it disclosed no basis upon which the Court could or should set the Tribunal’s decision aside.

Applicant’s written submissions

1. In written submissions filed in the Court on 8 April 2013, the applicant raised a number of additional matters.  None identified jurisdictional error on the Tribunal’s part.

Conclusion

1. As jurisdictional error on the part of the Tribunal has not been demonstrated, the application will be dismissed.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Date:  17 June 2013